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Lord Goldsmith: My Lords, I hear the noble Lord's proposal. It is known that the other place is about to rise, before this House. I urge noble Lords to consider the underlying merits of the situation. The fact is that another place is of the view that Part 5 is an important part of the Bill. The debate on it—the noble and learned Lord, Lord Lloyd, would probably agree—was largely between him and me. Few others in this House participated in that debate; the noble Lord, Lord Renton, was an exception, as was the noble Viscount, Lord Bledisloe.
Lord Thomas of Gresford: My Lords, I interrupt the noble and learned Lord to say that I also participated in that debate. I intervene not to raise that point but to refer to his suggestion a moment ago that the noble and learned Lord, Lord Lloyd of Berwick, was on his own or with very few others. Did the Reasons Committee in another place not take into account the fact that the amendment of the noble and learned Lord was passed and supported by noble Lords on all sides of the House?
Lord Goldsmith: My Lords, I should make clear what I was going to say. It was not that the amendment has not been agreed and supported by the House; it plainly was, as the noble Lord said. My point was rather narrower: that during the earlier stages of the Bill, the noble and learned Lord, Lord Lloyd, was among the very few who objected to the concept of Part 5; others had supported it. The Government say now, and we said then, that with that exception, Part 5 would become unworkable. It is therefore inappropriate to have the exception in the Bill. I was not suggesting for a moment that the noble Lord, Lord Thomas, had not spoken on this matter; he did so briefly at Third Reading.
In the end, there is an exception, which the Reasons Committee said is inappropriate. That, ultimately, is the reason that lies behind the disagreement of the Commons to the amendment. I invite noble Lords not to insist on Amendment No. 110.
6.28 p.m.
On Question, That the House do not insist on their Amendment No. 110 to which the Commons have disagreed for their reason numbered 110A but do propose Amendment No. 110B in lieu thereof?
Their Lordships divided: Contents, 126; Not-Contents, 44.
Acton, L.
Ahmed, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Chester, Bp.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B.
Jones, L.
Judd, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate,
L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Ouseley, L.
Patel, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L.
Rooker, L.
Sainsbury of Turville, L.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.
Attlee, E.
Baker of Dorking, L.
Bledisloe, V.
Bowness, L.
Brookeborough, V.
Brougham and Vaux, L.
Burnham, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Craigavon, V.
Darcy de Knayth, B.
Denham, L.
Elton, L.
Erroll, E.
Fowler, L.
Freeman, L.
Geddes, L.
Greenway, L.
Henley, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lloyd of Berwick, L. [Teller]
Lucas, L.
MacGregor of Pulham Market, L.
Marlesford, L.
Mayhew of Twysden, L.
Monson, L.
Mowbray and Stourton, L.
Northbourne, L.
O'Cathain, B.
Park of Monmouth, B.
Perry of Southwark, B.
Peyton of Yeovil, L. [Teller]
Phillips of Sudbury, L.
Renton, L.
Rogan, L.
Sandberg, L.
Sheppard of Didgemere, L.
Skelmersdale, L.
Stoddart of Swindon, L.
Tebbit, L.
Waddington, L.
Weatherill, L.
Resolved in the affirmative, and Motion agreed to accordingly.
6.39 p.m.
113After Clause 251, insert the following new clause—
"Proceedings brought under section 251: defence of respondent
Lord Goldsmith: My Lords, I beg to move that the House do not insist on their Amendment No. 113 to which the Commons have disagreed for their reason numbered 113A. I have already spoken to this amendment.
Moved, That the House do not insist on their Amendment No. 113 to which the Commons have disagreed for their reason numbered 113A.—(Lord Goldsmith.)
On Question, Motion agreed to.
(1) Where proceedings are brought against a person under section 251, that person (the respondent) is the person through whose unlawful conduct the property is said to have been obtained, the following provisions of this section shall apply.
(2) If the respondent denies that he is guilty of the alleged unlawful conduct, he shall. be entitled to have the question whether he is so guilty determined in a separate trial by the Crown Court, and the proceedings in the High Court shall be adjourned.
(3) If he is acquitted by the Crown Court, the proceedings in the High Court shall be dismissed.
(4) If he is convicted by the Crown Court, the Court must proceed under Part 2 of this Act, and the proceedings in the High Court shall stand adjourned until the proceedings in the Crown Court have been conducted whereupon the proceedings in the High Court shall be dismissed.
(5) If the respondent elects not to exercise his rights under subsection (2), the question whether he is guilty of the alleged unlawful conduct shall be determined by the High Court on the criminal burden and standard of proof, and all other questions shall be determined on the civil standard of proof.
(6) If the respondent is found guilty of unlawful conduct under subssection (5), and the court is satisfied that he is in possession of recoverable property, the court shall make a recovery order in accordance with this part of this Act, save that the recovery order shall not include property obtained by the. respondent through unlawful conduct committed by him before the coming into force of this Part, and section 316(3) shall to that extent not apply."
The Commons disagreed to this amendment for the following reason—
113ABecause it is not appropriate to provide any such exceptions, the House having reached its decision without the opportunity for debate.
166After Clause 286, insert the following new clause—
"Compensation of creditors
(1) Any person who was a creditor of the respondent at the time when a recovery order was made may, within one year of the date of the order, make an application to the court for compensation.
(2) The court may require the enforcement authority to pay compensation to the applicant if it is satisfied that—
(a) as a result of the making of the order the respondent is wholly or in part unable to repay the debt;
(b) the debt was incurred for full consideration; and
(c) at the time the debt was incurred the applicant had no reason to believe that a recovery order could be made against the respondent."
The Commons disagreed to this amendment for the following reason—
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